Professional Liability/Risk Management Brief
Clearly the design professional on a construction site has a duty to exercise reasonable care to avoid the risk of injury to others as well as to the design professional’s staff. Case law articulates this as a professional duty that may prevail over a contractual provision to the contrary, as evidenced by the case below.
In the pivotal New Jersey case of Carvalho v. Toll Brothers, the plaintiff was a contractor’s employee who was fatally injured in a construction site trench collapse. The defendant-engineer was providing services under a contract where the engineer was “not to have control over or charge of construction means...or safety precautions used by” the contractor, and where the contractor was to be “solely responsible for all construction means, methods, techniques, sequences and procedures utilized in connection with the work” and “responsible...for acts or omissions of its employees, subcontractors and their agents and employees.”
In Carvalho, the Supreme Court of New Jersey concluded that there “was a sufficient connection between the engineer’s contractual responsibilities and the condition and activities on the work site that created the unreasonable risk of serious injury.” The court examined the contractually-imposed obligations and limitations and the specific facts of the case. By contract the engineer was required to have a full-time representative at the site every day to monitor the progress of the work and “to ensure that the work of [the contractor] is performed in accordance with the requirements” of the contract documents. That representative had the right to stop the work of the contractor. In addition, it was proven that the engineer was aware of the trench’s potential instability because he had witnessed a prior collapse of a portion of it. The engineer also witnessed the subsequent collapse that caused the fatality. The court based its decision on the facts of the case, noting specifically that the engineer had both the opportunity and the capacity to alleviate the risk of harm. The court stated that “the actual awareness or knowledge of the risk of harm is also significant in determining the fairness in imposing a duty of care.”
Direction provided by Carvalho and other recent cases has been consistent.It is reasonable to expect that a design professional may be held liable for a worker injury if the following conditions exist:
· The risk of injury is foreseeable, meaning that it is predictable from the facts of a specific situation;
· The design professional has some element of control based on the relationship with the contractor;
· The design professional observes and recognizes a dangerous situation or condition, meaning that he or she has actual knowledge of the danger; and
· The design professional had a reasonable opportunity to prevent the injury.
The CNA/Schinnerer program has always suggested that the appropriate course of action is to address the problem in a written report informing the project superintendent (or other person in control at the site) of any recognized unsafe condition. Use of a standard procedure to record the date, a list of perceived unsafe conditions observed, and the name and position of the person to whom you gave notice of your observations in the field should prevent you from being seen as assuming a continuing duty for site safety. This documentation should also be sent to the project owner indicating that the unsafe condition is a breach of the contract for construction.
In assessing a design professional’s responsibility for a worker’s injury, a court will consider the contractual responsibility for safety, the right or power to control site safety conditions, and the opportunity and capacity to mitigate the risk or avert the harm. In its evaluation the court will look both at the obligations established by contract and the ability of the design professional to identify and prevent bodily injury under the specific circumstances.
To address site safety responsibilities, we, at Schinnerer, identify this guiding rule:
If a condition not amounting to a clear and present danger is observed, reasonableness suggests it should be reported to the person most capable of remedying the situation—the construction superintendent, for instance.
If the danger is more critical or recurring, could threaten the safety of adjacent areas, or indicates an inability of the contractor to meet contractual or legal requirements, contractual obligations and good sense suggests that it be reported to the owner (who retains the power to stop the work) and perhaps to government officials.
If the danger is imminent, prudence and professionalism require immediate action.
© 2009, Victor O. Schinnerer & Company, Inc. Statements concerning legal matters should be understood to be general observations based solely on our experience as risk consultants and may not be relied upon as legal advice, which we are not authorized to provide. All such matters should be reviewed with a qualified advisor. Victor O. Schinnerer & Company Inc. is managing underwriter for the CNA/Schinnerer Professional Liability Insurance Program, commended by NSPE/PEPP since 1957.
NSPE Education for You and Your Firm
2009 NSPE Fall Online Courses
DOWNLOAD A REGISTRATION FORM
Our fall lineup of Web seminars is taking shape. From our Ethics Forum to social media to GPS systems, we have a wide variety of programs. Web seminar registration: NSPE and SAME members: $119.00 each session, nonmembers: $149.00 each session.
Enrollment is per site connection. Invite as many colleagues to view the program as you can accommodate for this low price or get your chapter together over a brown bag lunch. Each site will receive supporting materials and a copy of the PowerPoint presentation slides. All participants will receive documentation of PDH credit for submission to state licensure boards. Each 60-minute seminar earns 1.0 PDH.
September 9, 12:30–1:30 p.m. (E.D.T.), Ethics Forum Part I: Protecting the Public Health, Safety, and Welfare & Demonstrating Professional Competence
Speaker: Arthur Schwartz
September 15, 12:30–1:30 p.m. (E.D.T.), Ethical Engineering: Concepts and Challenges
Speaker: Jason Borenstein
Description: This talk will discuss some of the main obstacles that can make ethical engineering difficult. Key ethics concepts and resources that can assist engineers in the effort to overcome these obstacles will be identified.
September 22, 12:30–1:30 p.m. (E.D.T.), The New Ethics and Compliance Rules for Contractors
Speaker: Seth Berenzweig
September 29, 12:30–1:30 p.m. (E.D.T.), Communicating Technical Ideas Persuasively
Speaker: Mel Lester
Description: Got a good technical idea? You're halfway there. In the competitive marketplace of ideas, it takes more than innovative thinking to succeed. You must also be able to persuade others that your ideas are worthy of their attention, acceptance, or investment. There are many competent engineers who can generate sound technical solutions. But few of them have mastered the art of persuasion. This session describes the basic dynamics of persuasion, explains why engineers in particular struggle with persuasive communication, and outlines some keys to selling others on your technical ideas.
October 7, 12:30–1:30 p.m. (E.D.T.), Ethics Forum Part II: Objectivity, Truthfulness, and Preserving Confidentiality.
Speaker: Arthur Schwartz
October 8, 12:30–1:30 p.m. (E.D.T.), Social Media and Engineering
Speaker: Stephanie Brown
Description: This presentation will highlight the following: introduction to social media; how, why, and where social media is a fit for B2B, AEC; strategy is key; case studies; dangers and pitfalls; benefits; case studies; HR perspective; monitoring & measurement; policies; the impact of social media on SEO (Search Engine Optimization); success with your Web site.
October 14, 12:30–1:30 p.m. (E.D.T.),GNSS Capabilities for Engineering, Surveying and Mapping
Speaker: Tim Kerr
Description: Satellite positioning technologies have become prominent in our daily lives. This Web seminar will provide an overview of the location technologies available today at various levels of precision. These range from pure autonomous navigation to sub-centimeter location for high precision monitoring and mapping projects. Emphasis is placed on selection the proper tool to meet the requirement of any project
October 20, 12:30–1:30 p.m. (E.D.T.), A Sustainable Approach to Planning and Design
Speaker: Paul Horton
Description: Have you been wondering how to make your projects more sustainable? Have your clients been asking for more sustainable planning and design? Paul Horton will provide an overview of the critical elements necessary in order to achieve a higher level of Sustainability in projects. While we won't be able to make every project super green, we should nonetheless have a clear strategy (or approach) and a set of tools to allow us to make meaningful sustainable advances or improvements based on the specific situation and the current client conditions.
October 22, 12:30–1:30 p.m. (E.D.T.), Comparing Contracts Documents: EJCDC, Consensus DOCS, and AIA
Speaker: Justin Weisberg
November 11, 12:30–1:30 p.m. (E.S.T.), Ethics Forum Part III: Conflicts of Interest and the Ethics of Gifts
Speaker: Arthur Schwartz
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Put the Spotlight on Your Project
Have you recently been involved with an engineering project that stands out from the crowd? Perhaps it’s a project with an innovative design or one that uses cutting-edge technology or materials. Maybe it’s a project that required overcoming significant obstacles or is on that simply has an interesting story. Now is the time to showcase that work in PE magazine and on the NSPE Web site.
If you are currently involved with such a project or have completed one in the previous 12 months, submit a brief project description, your contact information, and any supporting materials that help tell the story to email@example.com.
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"Buy American" Provisions Stir Concern
In a letter to the General Services Administration on June 1, 2009, the U.S. Chamber of Commerce expressed concerns that jobs could be threatened by the “Buy American” provisions in the stimulus package. Some firms may be shut out of projects because they have little choice but to use foreign-made materials or parts. The Chamber says modifications are needed in the requirements to limit the damage and difficulty of complying.
How are the “Buy American” provisions affecting NSPE engineers? We welcome your comments at the bottom of this article.[ return to top ]
Get the Latest News on Contract Issues
Recent Court Decisions of Relevance to Contract Documents
Engineers Joint Contract Documents Committee General Counsel Hugh Anderson of the law firm Akerman Senterfitt Wickwire Gavin prepares and discusses a summary of recent court decisions relevant to contract documents, which can now be found on the NSPE Web site.
Significant Legal and Legislative Activities
Arthur Schwartz, NSPE deputy executive director and general counsel, prepares a summary of significant legal and legislative activities to provide information to the Engineers Joint Contract Documents Committee as they revise documents, which can now be found on the NSPE Web site.[ return to top ]
PEPP Presents Prestigious Awards
The purpose of the PEPP Award is to honor an individual who has made an outstanding contribution to the role of private practice serving in the public interest.
The 2009 recipient of the PEPP Award is Fred E. Palmerton, P.E., F.NSPE. Palermeton is vice president of Palmerton & Parrish Inc., a geotechnical and environmental services firm which he cofounded in 1989. Having created and sustained a successful engineering consulting business, Palmerton now devotes his time to the advancement of professional engineering and mentoring of young engineers.
Palmerton has held numerous positions within NSPE, including NSPE Board of Directors vice president, PEPP chair, and PEPP regional vice chair. He is an active member of the Missouri Society of Professional Engineers, the Ozark Chapter of MSPE and MSPE-PEPP.
PEPP Professional Development Award
Since 1960, NSPE has used this award to recognize engineering employers who have made significant contributions to the advancement and improvement of engineering practices.
This year’s recipient is Freese and Nichols Inc. Freese and Nichols Inc. is a full-service professional consulting firm serving municipal and county governments, water districts and river authorities, U.S. and state governments, U.S. military, and higher education. Freese and Nichols' 436 employees provide engineering, architecture, environmental science, planning and program management services throughout Texas. In 2007, Freese and Nichols became the first architecture/engineering consulting firm to receive the Texas Award for Performance Excellence, the seventh in the Best Small & Medium Companies to Work for in America list by the Society for Human Resource Management and the Great Place to Work Institute.
PEPP Merit Awards
This award is presented to the committee chairs or members who have made significant contributions to the interest group.
Vernon R. Lawson, P.E., is senior vice president of Allgeier, Martin & Associates and has spent the past 55 years with the company holding positions as president and chairman of the board. He was the recipient of the 2008 Missouri Society of Professional Engineers Private Practice Distinguished Service Award for his outstanding contribution to the advancement and recognition of the role of private practice in serving the public interest. Lawson is a licensed PE in nine states, has been an active member of NSPE, and has published numerous papers relating to the field.
Lennart E. Lindahl, P.E., started a Florida engineering firm in 1970 and successfully managed the business for 36 years, including its merger with a national company in 2006. He is the 2008 recipient of the Florida Institute of Consulting Engineers A.W. Gilchrist Award for bringing recognition to the profession through technical activities, public service, and leadership. Lindahl's record has encompassed 15 years of volunteer service to three Florida governors. He has held the positions of chairman of the Florida Inland Navigation District, which maintains the Atlantic Intercoastal Waterway, and vice chair of the South Florida Water Management District, which is responsible for managing water resources and the environment, including the Comprehensive Everglades Restoration Program.
PEPP Outstanding Service Award
The PEPP Outstanding Service Awards are presented to recognize outstanding service by PEPP Executive Board members, committee chairs or members, PEPP members serving in liaison functions or on joint activities, or to any other member who has made significant contribution.
This year’s recipients include the following:
Richard Delp, P.E.
Mark Davy, P.E.
Kevin Skibiski, P.E., F.NSPE
PEPP Chair Award
The PEPP Chair Award is presented to a person or organization that has contributed to the engineering profession, the practice of consulting professional engineers, and the public’s understanding of the role that the professional engineer in private practice plays in advancing the quality of life.
This year’s recipient of the PEPP Chair Away is Steve Theno, P.E. Theno has been practicing mechanical engineering since 1978. He is a graduate of the University of Washington and is registered to practice mechanical engineering in Alaska. He is president of PDC Inc. Engineers, an 80 person firm with offices in Anchorage and Fairbanks, Alaska, Washington and Hawaii and is principal mechanical engineer and leads the Complex Facilities design group.
For more information, please visit the NSPE Web site.
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Arkansas Student Awarded Miller Memorial Scholarship
This years recipient of the Albert H. Miller, P.E., Memorial Scholarship Fund is Thomas Gilbert. NSPE-PEPP has established the Albert H. Miller, P.E., Memorial Scholarship Fund to annually honor an outstanding engineering student in cooperation with Al Miller’s alma mater, the University of Arkansas.
Gilbert is originally from Greenwood, Arkansas and will be a senior this fall at the University of Arkansas. He is enrolled in the Honors College and within the civil engineering, he is focusing on geological engineering.[ return to top ]
Seven Ways To Be More Productive
Herbert M. Cannon
1. Don’t read e-mail for the first two hours in the office.
E-mail is a great distraction and leads you down the path of autopilot task-based activities. When was the last time you received an e-mail that couldn’t wait a few hours before dealing with it?
2. Dedicate at least the first hour of every day (two hours are better) to working on projects that are of strategic importance.
For me it is developing a new seminar, writing my newsletter, sending a proposal, or finishing a project early.
3. Don't look at the Internet for the first two hours of each workday.
Yes, I love to check out CNN or MSN to see what is going on, but it can wait. In fact, make five minutes of Internet time contingent upon completing the strategic task of the day.
4. Set up artificial rules to keep yourself motivated and focused.
Examples are no lunch until the newsletter article is written; no bathroom break until that 95% complete project is 100%; and not allowing myself to pay my American Express Card until I finish the new seminar outline.
5. Set up personal rewards for finishing major projects.
Taking a Friday afternoon off, going on a special outing with my family, or splurging on the latest gadget are things that motivate me to finish my projects.
6. Delegate. Delegate. Delegate.
I know you can do it quicker yourself, but it is clearly a short-term strategy. Invest the time needed in delegating every possible task and you will reap the benefits long after the pain of delegation has passed.
7. Save task-based activities for the end of the day. Spend the last half-hour or so of every day to quickly handle those mundane tasks that cannot be delegated. This will free your desk from the distracting clutter that has accumulated and allow you to start fresh the next day.
Herbert M. Cannon, president of AEC Management Solutions Inc. and publisher of AEC Managing Partner Newsletter, is a management consultant, seminar provider, and speaker exclusive to the A/E Industry. He is available to speak at company meetings and conferences. For more information contact Herb via e-mail mailto:firstname.lastname@example.org. Or visit his Web site at www.aecmanagementsolutions.com.
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PEPP Members Go Out to the Ol' Ballgame
At the 2009 NSPE Annual Meeting, PEPP members enjoyed a St. Louis Cardinals baseball game.
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